New York, New Haven & Hartford R. Co. v. Leary

• Decision Date: 14 May 1953
• Docket Number: No. 4699.,4699.
• Citation: 204 F.2d 461
• Parties: NEW YORK, NEW HAVEN & HARTFORD R. CO. v. LEARY.
• Court: U.S. Court of Appeals — First Circuit

204 F.2d 461 (1953)

NEW YORK, NEW HAVEN & HARTFORD R. CO. v. LEARY.

No. 4699.

United States Court of Appeals First Circuit.

May 14, 1953.

Noel W. Deering, Boston, Mass. (Charles W. Bartlett, John O. Parker and Ely, Bartlett, Thompson & Brown, Boston, Mass., on brief), for appellant.

John V. Higgins, New York City (Thomas J. O'Neill, New York City, Joseph P. Coughlin, Cambridge, Mass., and O'Neill, Higgins & Latto, New York City, on brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from a judgment entered in the United States District Court for the District of Massachusetts on July 2, 1952, based upon a jury verdict in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Safety Appliance Acts, 45 U.S. C.A. § 1 et seq.

By agreement of counsel, the case was submitted to the jury only upon the issue of the alleged violation of the Safety Appliance Acts, causation and damages. On July 2, 1952, after the defendant's motion for a directed verdict was denied, the jury returned a verdict for plaintiff in the sum of $84,000. Defendant's motions for judgment notwithstanding the verdict and for a new trial were denied on July 21, 1952.

The plaintiff, John W. Leary, a conductor for the appellant railroad, sought recovery for injuries sustained when he fell from an open-sided trestle bridge to the highway below between Clinton and Madison, Connecticut, at about 3:30 a.m. on the morning of September 12, 1946. Leary was working on the Boston to New York passenger train which left Boston at 11:45 on the night of September 11, 1946. After the train passed the station at Clinton trouble with the air brake developed causing the train to stop, concededly because of a defective air hose. When it stopped, the front part of the locomotive was resting on the trestle over a highway.

Leary was riding in the head coach immediately to the rear of the baggage car. When he heard the brakes go on hard in emergency, and the train came to a stop, he went outside, carrying his electric lantern. As he stepped down to the ground, he met the engineer walking back from the engine with a lighted kerosene torch in hand. The engineer told him there was a bad air leak, and they then walked back together towards the rear to find it.

When they heard air escaping, they walked through a vestibule to the other side of the train and found a broken air hose on the head end of the head sleeper. Leary then "Went up to the engine to get the regulation air hose" and after he got it, started to walk around the head of the engine so as to go back on the other track.¹

Leary testified that he "probably took half a dozen steps, I don't know, and I just walked right into space." There is testimony that "the weather was clear but it was kind of in a valley and there was a heavy ground fog and it was very dark." There was no artificial light in the vicinity except a glare that came from the ashcan of the engine. At the time of the accident, Leary was carrying his electric hand lantern with a bulb in the bottom, and he testified that as he walked he was looking down to see where each foot was going, since he could not see any distance in front.

Scanlon, a fireman for the railroad, testified that he was still on the engine when Leary fell and that he heard him crying for help and "went down the gangway on the engineer's side and ran toward the direction of the cry. * * * I got over to the edge of the bridge and I stopped myself in time. Looked down and saw Leary on the street below."

Appellant contends that there was insufficient evidence to submit to the jury either the question of the violation of the Safety Appliance Acts or the question whether or not such violation was the proximate cause of Leary's injuries. Furthermore, appellant contends that it was prejudiced because the charge to the jury failed to explain the difference between legal condition and legal causation and because the trial judge erroneously excluded evidence that the plaintiff was receiving certain disability payments.

With regard to the violation of the Safety Appliance Acts, appellant's contention is that §§ 1 and 9 of the Acts do not impose an absolute duty upon the railroad. It maintains that in addition to a showing that the air hose burst, it is also necessary to show that the defect was attributable to negligence on the part of the railroad.

This argument is based primarily on a difference in the language employed to define the various safety requirements of the Acts. The appellant asserts that language like "secure sill steps and efficient hand brakes" in § 11 is mandatory whereas the absence of any such adjectives in §§ 1 and 9 shows that only the ordinary duty of care is intended to be imposed.

Appellant argues that the statement in Coray v. Southern Pacific Co., 1949, 335 U.S. 520, 522, 69 S.Ct. 275, 276, 93 L.Ed. 208, that the Safety Appliance Act "* * * commands railroads not to run trains with defective brakes. * * *" does not apply to air brakes. It is argued that the citations offered in support of this statement show that the Supreme Court was thinking only of certain sections which are mandatory or of cases where the defect in the air brake was clearly negligence. Therefore, the Coray case is distinguished from the instant case on the ground that here we are not concerned with a defective coupler, Louisville & Nashville R. R. Co. v. Layton, 1917, 243 U.S. 617, 37 S.Ct. 456, 61 L.Ed. 931, or with a defective grab iron, Davis v. Wolfe, 1923, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284; Brady v. Terminal R. R. Ass'n, 1938, 303 U.S. 10, 58 S.Ct. 426, 82 L.Ed. 614, which apply to mandatory sections imposing an absolute duty. Nor, it is said, did the Coray opinion intend us to be governed in this case by a decision that violation was conclusive of negligence when air brakes were not hooked up at all, Fairport, P. & E. R. Co. v. Meredith, 1934, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1446, or when trains collided because brakes failed to work. Spokane & Inland E. R. R. Co. v. Campbell, 1916, 241 U.S. 497, 36 S.Ct. 683, 60 L.Ed. 1125.

We think that the Coray case does not warrant us in reading §§ 1 and 9² with regard to the requirement of safe brakes as the appellant would have us read it. The Coray opinion indicates that the Supreme Court was doing more than merely applying the standard for hand brakes under § 11³ when it said: "We do not view the Act's purpose so narrowly. * * * And this Act, fairly interpreted, must be held to protect all who need protection from dangerous results due to maintenance or operation of congressionally prohibited defective appliances. * * * Liability of a railroad under the Safety Appliance Act for injuries inflicted as a result of the Act's violation follows from the unlawful use of prohibited defective equipment * * *. In this case where undisputed evidence established that the train suddenly stopped because of defective air-brake appliances, petitioner was entitled to recover if this defective equipment was the sole or a contributory proximate cause of the decedent employee's death. * * *" Coray v. Southern Pacific Co., 1949, 335 U.S. 520, 522, 523, 69 S.Ct. 275, 276.

We think that this language places air brakes in the same category with couplers and grab irons. Subsequent to the Coray decision, in O'Donnell v. Elgin, J. & E. R. Co., 1949, 338 U.S. 384 at page 394, 70 S.Ct. 200, at page 206, 94 L.Ed. 187, the court said: "* * * we hold that the plaintiff was entitled to a peremptory instruction that to equip a car with a coupler which broke in the switching operation was a violation of the Act, which rendered defendant liable for injuries proximately resulting therefrom, and that neither evidence of negligence nor of diligence and care was to be considered on the question of this liability." Carter v. Atlanta & St. A. B. R. Co., 1949, 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236 and Affolder v. N. Y., C. & St. L. R. Co., 1950, 339 U.S. 96, 98, 70 S.Ct. 509, 94 L.Ed. 683 emphasized this holding. The language and purposes of §§ 1 and 9 do not warrant us in treating air brakes differently from couplers.

Having determined that the existence of a defective air brake in this case was all that plaintiff had to show in order to submit the violation of the Act to the jury, we must next consider whether the evidence warranted submission of the case to the jury on the issue of so-called legal causation.

The question presented is whether or not a jury could reasonably find that Leary's fall from the trestle was within the risk created by the defective air brake. Cf. Boston & M. R. R. v. Cabana, 1 Cir., 148 F.2d 150, certiorari denied, 1945, 325 U.S. 873, 65 S.Ct. 1414, 89 L.Ed. 1991. We do not read the Coray decision as enlarging the function of the jury in Federal Employers' Liability Act cases. It is not for the jury to decide in every case whether an injury is within the risk. The instant case is close.

In Brady v. Southern Ry. Co., 1943, 320 U.S. 476, 483, 484, 64 S.Ct. 232, 236, 88 L. Ed. 239, the Supreme Court asserted that "Events too remote to require reasonable prevision need not be anticipated * * *" and that the "* * * carrier's negligence must be a link in an unbroken chain of reasonably foreseeable events." In that case, during a switching operation, derailed cars killed plaintiff's husband when an improperly closed derailer and a defective rail opposite combined to throw him under the wheels. A directed verdict for defendant in a state court was affirmed on the ground that the accident was not "a danger reasonably to be anticipated." It was held that although maintenance of the defective rail may have been negligent, without the concurrence of the closed derailer the accident would not have happened. Since there was insufficient evidence of negligence in closing the derailer, and since the record disclosed...